Legal Practice Briefing
24 October 1995
THE DISCIPLINING OF PUBLIC
The Statutory Framework
The disciplining of officers of the Australian Public Service is dealt with in Division 6 of Part III of the Public Service Act 1922 ('the Act') and the Public Service Regulations, the Merit Protection (Australian Government Employees) Act 1984 and the Merit Protection (Australian Government Employees) Regulations.
An Officer's Duties
For disciplinary purposes, it is clear that the duties of an officer are not confined to the duties of the particular office occupied by that officer. Rather, the Act recognises that there are more general duties which, if not fulfilled, will render an officer liable to discipline. For instance, all officers are obliged to comply with any enactments, regulations, determinations, awards or departmental instructions applicable to the performance of their duties (Public Service Regulation 8A(b)).
What Does Not Constitute Disciplinary Action
Counselling of an officer which is not undertaken by, or at the behest of, an authorised officer under paragraph 61(2)(a) of the Act, or by an inquiry officer under subsection 62(6) of the Act, does not amount to disciplinary action. Likewise, levelling criticism at an officer's performance or telling an officer to do, or not to do, something does not constitute disciplinary action against the officer. Indeed, the giving of a lawful and reasonable direction to an officer does not constitute disciplinary action against that officer. The distinction between disciplinary and non-disciplinary action may be vital in determining liability to compensate an employee under the Safety Rehabilitation and Compensation Act 1988, since the definition of 'injury' in that Act excludes any disease, injury, or aggravation thereof suffered by an employee as a result of reasonable disciplinary action (see Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75).
The Role of the Authorised Officer
Except in those cases where an officer is disciplined on the basis of being found guilty of a criminal offence, disciplinary action commences by way of an authorised officer looking into the alleged wrongdoing.
The authorised officer's primary role is to decide whether an officer may have failed to fulfil his or her duty as an officer: if the authorised officer decides this question in the affirmative, the authorised officer must then decide whether the officer should be charged or not. If the authorised officer decides against laying a charge, the authorised officer may counsel the officer or cause a supervisor of the officer to counsel the officer (section 61 of the Act).
It is not the role of an authorised officer to decide whether an officer has actually committed misconduct or not.
Authorised officers can be 'appointed' generically, that is, they need not be appointed in relation to a particular person or particular suspected misconduct. An authorised officer can be 'appointed' by the relevant Secretary or a delegate of the relevant Secretary. It is important that instruments of appointment and of delegation be correct. An incorrect instrument can invalidate all subsequent disciplinary action.
While there is a good argument that the scheme of the Act excludes an obligation on the part of an authorised officer to accord natural justice to the officer under investigation, it is good practice to accord natural justice even at this early stage of the disciplinary process (by, for example, advising the officer that charges are being considered and inviting a brief written or oral response).
It is extremely important that any charge laid by an authorised officer should be appropriately worded. Most of the problems which arise in connection with disciplinary action result from poorly worded charges. The Legal Practice is available to advise authorised officers on the most preferable wording of charges which it is proposed be laid.
The Inquiry Officer
The inquiry officer's primary role is to carry out an inquiry into a disciplinary charge and to determine whether the officer concerned has committed misconduct. If satisfied that misconduct has occurred, the inquiry officer decides what action should be taken (see section 62 of the Act).
Some points to note about the role of the inquiry officer are:
- an inquiry officer cannot be appointed generically under the Act. The appointment must be for the specific purpose of inquiring into a specific charge and the appointment must take place after the laying of the charge;
- although there is doubt about whether inquiry officers can be appointed by a delegate of the relevant Secretary, the better view is that they can. However, given the importance of the role and the need for a specific appointment to be made after a charge is laid, the preferable course is for the inquiry officer to be appointed by the relevant Secretary;
- doubt exists about whether an inquiry officer can be appointed from outside the department of the officer being disciplined;
- the minimum natural justice obligations of an inquiry officer are set out in section 62 of the Act. It is good cautionary practice for an inquiry officer to make available all relevant documents obtained in the course of the inquiry to the officer concerned before determining the charge(s);
- as a general rule it is recommended that inquiry officers not agree to allow legal representatives to put oral submissions and/or to cross-examine witnesses who have supplied information in relation to the charge;
- the civil standard of proof applies to the determination of a charge but, in accordance with the decision in Briginshaw v Briginshaw 60 CLR 336, the more serious the conduct alleged against an officer, the higher the level of satisfaction required of an inquiry officer before finding a charge proven;
- the extent to which a charge of misconduct can be varied or amended is a grey area. Any variation or amendment is more appropriately effected by an authorised officer than by an inquiry officer. Cosmetic amendments which do not alter the substance of what is alleged against an officer can probably be made;
- an officer should not be subjected to more than one penalty in relation to one instance of misconduct. Accordingly, if multiple or alternative charges have been laid against an officer, the inquiry officer must ensure that only one penalty is imposed in respect of each instance of wrongdoing;
- in deciding what penalty to impose in relation to misconduct it must be remembered that the object of disciplinary proceedings is to protect the public, to maintain proper standards of conduct by members of the Australian Public Service and to protect the reputation of the APS: the object of disciplinary proceedings is not to punish or to exact retribution (Hardcastle v Commissioner of Police 53 ALR 593 at 597).
Does the Privilege Against Self-Incrimination Apply?
An officer suspected of misconduct cannot be lawfully directed to answer questions relating to the matter. The Federal Court has held that the disciplinary provisions of the Act (and the liability of officers to obey directions) does not remove the common law privilege against self-incrimination (Comptroller-General of Customs v Disciplinary Appeal Committee and Anor 27 ALD 687). Accordingly, authorised officers and inquiry officers should make it clear to the officers under investigation that they are not obliged to answer questions, or supply information, if they do not wish to do so.
Appeals to Disciplinary Appeal Committees
An officer who is the subject of a finding of misconduct may, under section 63D, appeal to a Disciplinary Appeal Committee ('DAC') unless the penalty action taken is admonition, a fine of $50 or less or transfer at the same level and locality. The appeal may be against the finding of misconduct or just against the penalty imposed. A hearing by a DAC is a completely new hearing of the case and is usually conducted as an adversarial procedure. The rules of evidence do not apply but witnesses can be (and frequently are) examined on oath and cross-examined, relevant documents can be the subject of a summons and the parties are entitled to be legally represented.
The DAC is constituted by a Convenor, a nominee of the relevant union and a nominee of the relevant department or authority. The DAC may confirm, vary or set aside a decision before it. There is some doubt about whether this entitles the Committee to increase a penalty imposed by an inquiry officer. The DAC has a discretion to award costs to a successful appellant.
The Meaning of Improper Conduct Paragraph 56(d) of the Act
By far the most common charge laid against an officer is that he or she engaged in improper conduct as an officer within the meaning of paragraph 56(d) of the Act. An issue arises as to whether such a charge requires proof of a particular mental element. It is now well settled that it is not a necessary element of a charge of improper conduct that the officer concerned was aware that what they were doing would be regarded as improper (see the decision of the Full Federal Court in O'Connell v Palmer 53 FCR 429). However, if a charge of improper conduct positively alleges a particular state of mind on the part of the officer concerned, then an inquiry officer must be satisfied of such state of mind before finding the charge proven. For this reason, it is often prudent to express a charge of improper conduct in terms which allege the doing of some act in circumstances where the officer concerned 'knew or ought to have known' that it was not proper for them so to do.
The mere fact that conduct is liable to criticism, for instance as being unwise, misguided or imprudent, does not mean that the conduct is necessarily improper. A qualitative judgment about the character of the conduct in question must be made in the light of all relevant circumstances. What is improper in one context might be proper in another context.
Conduct as an Officer and Conduct Otherwise than as an Officer
It can be extraordinarily difficult in a particular case to determine whether conduct was engaged in 'as an officer' (paragraph 56(d)) or 'otherwise than as an officer' (paragraph 56(e)). Improper conduct at work-related social occasions raises this dilemma. Each case must be considered on its facts. Of particular relevance will be the extent of the connection between the conduct in question and the workplace. It is recommended that legal advice be sought in those cases which raise a serious issue as to whether the conduct was engaged in 'as an officer' or 'otherwise than as an officer'.
Suspension of an officer is dealt with in sections 63B and 63C of the Act. An officer cannot be suspended unless and until the officer has either been charged with a criminal offence or an authorised officer has informed the relevant Secretary that they are of the opinion that the officer may have failed to fulfil their duty as an officer (section63B(1)). If either of these two pre-conditions is satisfied, then an officer may be suspended provided the relevant Secretary is of the opinion that it would be prejudicial to the effective operation of the Service, to the interests of the public, to the interests of the officer concerned or to other officers, if the officer were to continue to perform the duties of his or her existing office. Before suspending an officer, consideration must be given to whether it would be sufficient to direct the officer to temporarily perform other duties. An officer should be suspended only as a last resort. Suspension will ordinarily be warranted only in those cases where the gravity of the officer's action is such as to warrant dismissal.
Importantly, a Secretary is not authorised to suspend an officer unless the Secretary has first given the officer an opportunity to be heard or the Secretary is of the opinion that it would not be appropriate, in the particular circumstances, to give the officer such an opportunity (section 63B(1)). Clearly, the general rule is that an opportunity to be heard should be given unless there are special or exceptional circumstances. Such circumstances must relate to the interests of the Service, the public, the officer concerned or his or her fellow officers.
Other points to note in relation to suspension are:
- if an officer is suspended on the basis of a criminal charge, then the suspension is without pay (section 63B(2)). If an officer is suspended on the basis that an 'authorised officer' has formed an opinion that they may have failed to fulfil their duty as an officer, then the suspension is with pay until a disciplinary charge is laid, whereupon the suspension takes effect without pay (section 63B(3));
- suspension does not affect an officer's entitlement to leave of absence with salary (section 63B(5));
- a suspended officer who is not receiving salary is entitled to engage in outside employment (section 63B(6));
- a Secretary may at any time, upon the application of the officer or otherwise, remove asuspension;
- the whole or part of the officer's salary may be paid during the whole or part of suspension if the relevant Secretary is satisfied that the officer is suffering, or has suffered, hardship (section 63C(2)). Factors which are usually taken into account in deciding whether hardship exists include the likely period before the charge is heard and determined, the financial commitments and any debts of the officer, the savings and other sources of income of the officer, the opportunity to obtain outside employment, eligibility for unemployment or other social security benefits, and relevant domestic circumstances;
- a suspension continues in force until removed by the relevant Secretary (or delegate) or until the basis upon which it was imposed is resolved (that is, the officer is acquitted of a criminal charge or found innocent of a disciplinary charge), in which case the Secretary must remove the suspension;
- a Secretary must, forthwith after 30 days, consider whether the suspension should be removed (section 63C(2)(b)).
Concurrent Disciplinary Action and Criminal Proceedings
The mere fact that a criminal prosecution is imminent or pending does not necessarily mean that disciplinary action ought not be taken against the officer for the same or related conduct. Again, each case ought be considered in the light of its own facts, including any preferences expressed by the police or prosecuting authority. If an officer is found guilty of a criminal offence (whether or not a conviction is recorded) disciplinary action can be taken, if appropriate, under section 63 of the Act. If an officer is acquitted of a criminal charge, disciplinary action can still be taken against the officer under sections 61 and 62: the so-called principle of 'double jeopardy' has no application in these circumstances (Hardcastle's case) but it would be prudent to have regard to the reasons given for the acquittal of the officer.
Amenability of Disciplinary Decisions to Judicial Review
Decisions of authorised officers and inquiry officers are amenable to judicial review and attract an obligation to provide statements of reasons, upon request, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977. If an inquiry officer directs the imposition of a penalty, the Act itself requires that a statement of reasons be issued, even in the absence of any request, to the officer concerned. Moreover, decisions to suspend an officer are subject to judicial review and an obligation to provide a statement of reasons upon request pursuant to section 13 of the AD(JR) Act.
It is also possible for statements of reasons to be sought in relation to the appointments of authorised officers and inquiry officers. If it is discovered that there is a defect in the instrument of authorisation by the relevant Secretary, then all process which has followed that appointment may well be invalid. It is thus extremely important to check documents 'appointing' authorised officers or inquiry officers before they begin to exercise their powers.
It is possible for any of the decisions referred to above (appointments, laying charges, suspension, making findings of misconduct) to be challenged in the Federal Court on the basis of error of law in the decision-making process. In the event that an error of law is established, the decision will usually be set aside by the Federal Court and remitted to the decision-maker for further consideration according to law. The costs of any such proceedings will usually be paid by the unsuccessful party.
The Industrial Relations Court
Since the introduction of the unfair dismissal provisions into the Industrial Relations Act 1988 ('the IR Act') on 31March 1994, an officer or employee who has been dismissed under the disciplinary provisions of the Public Service Act 1922 has had the right to challenge the validity of the termination decision in the Industrial Relations Court of Australia. That Court has considered and rejected an argument that the Court cannot consider these matters because there is an adequate alternative remedy in another forum (DAC proceedings) (Maggs v Comptroller-General of Customs (1995) 128 ALR 586).
In such an application the onus is on the employer tosatisfy the Court that there was a valid reason fortermination of the employment (subsection 170DE(1) of the IR Act). A termination will not bevalid if it is harsh, unjust or unreasonable (subsection 170DE(2)). It must also be procedurally fair (section 170DC).
In proceedings in the Industrial Relations Court the rules of evidence apply. Thus it is important that the basis for a termination of employment for disciplinary reasons be able to be established by admissible evidence.
APS Enterprise Agreement
On 22nd September 1995 the Australian Industrial Relations Commission approved the agreement Continuous Improvement in the Australian Public Service, Enterprise Agreement: 19951996. That Agreement removes the right of staff who are dismissed as a result of disciplinary action under Part III, Division 6 of the Act, to appeal to a Disciplinary Appeal Committee. Now they must apply direct to the Industrial Relations Court of Australia.
Proposals for Reform
In December 1994 the Public Service Act Review Group recommended to the Government substantial changes to the Act, including to the provisions dealing with discipline. These recommended changes have largely been accepted by the Government. A code of conduct is to be inserted into the Act. Misconduct will be defined as a breach of that code and Secretaries will be given specific statutory power to deal with misconduct as they consider appropriate, including a power to determine the circumstances in which an investigation will be necessary and the power to apply appropriate sanctions. Secretaries will be empowered to issue their own guidelines describing basic procedures to be followed, but they must use the guidelines which will be set by the Public Service Commissioner in the absence of any of their own.
It is proposed that less serious cases of misconduct be dealt with as far as possible by informal resolution, for example through counselling or mediation. Only in the more serious cases is it proposed that a formal process be followed
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The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.